Smith v. Tharp

17 W. Va. 221, 1880 W. Va. LEXIS 9

• Court: West Virginia Supreme Court
• Decided: November 27, 1880
• Status: Published

Opinion

Green, PRESIDENT,

announced the opinion of the Court:

The only question presented by the record is: Was the instruction given by the court erroneous ; and if so, was this error prejudicial to the plaintiff in error ? The counsel for the defendants in error in his printed brief states, that he will insist also 1st, “ that this tract of land was forfeited for failure' to enter the same upon the books of the commissioner of the revenue of the proper county, and to' have them charged with the proper taxes thereon, for the several years for which the same was shown to have been admitted, and therefore that the plaintiff was not entitled to recover. 2d. That by reason of the said forfeitures the plaintiff could show no title to the premises claimed, and was not and could not be prejudiced by the instructions given to the jury. 3d. That upon the whole evidence it appearing that the lessor of the plaintiff had no title to the premises, this court would not disturb the verdict by reason of any instructions that the court might have given the jury.’’ But these propositions have not been argued before this court either orally or in writing. And it seems to me they are without any substantial foundation.

It is true that if the evidence certified by the court below was all the evidence submitted to the jury, it would be very clear that the plaintiff had forfeited this land by his failure to enter the same upon the commissioners’ books and have it charged with the proper taxes. The act of February 27, 1835, (See Session Acts of 1834-5, ch. 13, § 2, p. 12,) expressly provides, “That every owner of a tract of land shall on or before July 1, 1836, enter on the books of tbe commissioners of the count)', wherein such tract of land lies, such tract of land and have it charged with all taxes and damages in arrear, and actually pay the same, and upon his failure to do so such tract of land, if not then, February 27, 1835, in actual possession of the owner, should become forfeited to the commonwealth after July 1, 1836.” The time for making this entry of omitted lands, when they had not been omitted since 1831, was extended by the act of March 23, 1836, to November 1, 1836. See Session Acts of 1835-6, ch. 3, § 1, p. 7. Neither the possession of the land nor the entry of it on the commissioners’ books, after the land became under those acts absolutely forfeited, could divest the title of the commonwealth. See Ushers’ heirs v. Pride, 15 Gratt. 200; Postlewait v. Wise, supra.

But, for all that appears in this record, there may have been proof before this jury showing, that the plaintiffs were in the actual possession of the land in controversy of February 27, 1835, in which case it would not have been forfeited under the act of that-date. In fact as the evidence before the jury is not all certified; and this court cannot say, that the plaintiff failed to show title to the land, or that the plaintiff could not be prejudiced by improper instructions given to the jury. The question must therefore be considered, whether the instructions actually given by the court were erroneous, and if so whether upon the face of the instruction itself, including the evidence certified as a part thereof, it appears affirmatively, that the plaintiff could not have been injured by such erroneous instruction.

The law in force in 1800, when this tract of land was entered on the commissioner’s books of Harrison county, where it lay, was the act passed December 13, 1792.. Sec Shepherd’s Acts, vol.' 1, p. 61, ch. 22, § 35, (Rev. Code of 1819, ch. 183, § 88, vol. 2, p. 39), which enacted: “In case the tax on any tract of land within this commonwealth shall not be paid for the space of three years, the right to such lands shall be lost, forfeited and vested in the commonwealth ; and it shall be lawful for any person to acquire a title to any land so forfeited in the manner prescribed by law.” Numerous acts of the Legislature permitting the r; demption of land, which had been forfeited or returned delinquent, for short periods of time after the passage of these several acts were subsequently passed ; this extension being generally for one or two years after the passage of the acts, but sometimes for a shorter period. See Session Acts of 1808-9, ch. 14, p. 22; Session Acts of 1810-11, ch. 15, p. 16; Session Acts of 1811-12, ch. 18, p. 26; Session Acts of 1816-17, ch. 20, p. 25; Session Acts of 1817-18, passed February 23, 1818; Session Act passed February 24, 1820; Acts of 1819-2Ó ; Session Acts of 1824-25, ch. 12, p. 17; Session Acts of 1825-26, ch. 4, p. 8; Session Acts of 1826-27, ch. 3, p. 7 ; Session Acts of 1827-28, ch. 4, p. 8.

In 1816, by an act passed February 26, (See Session Acts of 1815-16, p. 11, ch. 4, § 4), it was enacted, that in all cases of lands returned delinquent for the non-payment of taxes thereafter they might be redeemed by payment into the treasury made before January 1, in every year, in which said lands might be offered for sale for such delinquency. See Rev. Code of 1819, vol. 2, p. 58, ch. 183, § 87. And on February 20, 1817 it was enacted, that no lands should thereafter be exposed for sale except in the manner thereafter to be provided by law; but such arrears of taxes and damages should continue to be a lien upon the lands, on which they were chargeable. See Session Acts of 1816-17, ch. 20, § 2, p. 26; 2d vol. R. C. 1819, p. 39, ch. 183, § 88.

By the Act of April 1, 1831, Sup. R. C. p. 345, §2, it was enacted, that lands returned delinquent for 1820 or any previous year, if not redeemed before the 1st of January, 1832, were forfeited; and lands returned delinquent for any year subsequent to 1820 and previous to 1831 were forfeited, if not redeemed before the 1st of November, 1833. And by the acts oí December 16, 1831 and March 10, 1832, further time of redemption upon all such lands was given until the 1st of April, 1834. The period of redemption was extended by the act of March 11, 1834, to the 1st of October, 1834. The act of February 27, 1835, §1, gave further time, until the 1st of July, 1836, for the redemption of such lands returned delinquent, and which became vested in the Literary Fund on October 1, 1834. The act of March 30, 1857, extended the time for the redemption of such forfeited lands until the 15th of January, 18381 and the act of March 1, 1838, extended the time to the 1st day of July, 1838, when the period of redemption expired. The forfeiture of lands returned delinquent became complete on the 1st day of October, 1834. The subsequent acts treated them not as delinquent merely, but as lands forfeited • and although further time to redeem was given, the forfeitures which had accrued by prior laws were not redeemed, except in such cases where the owner availed himself of the privilege to redeem. See Staats v. Board, 10 Gratt. 400; opinion of Allen, Judge, in Usher’s heirs v. Pride, 15 Gratt. 198 and 199.

It appears by the evidence certified by the court, that William Deakins, the original patentee of the land in controversy, died in March, 1798, in Montgomery county, Maryland, his will being dated in that month, and in the same month it was probated in that county. After that in the years 1800 and 1801, this land was taxed in his name and not in the name of his devisees. The R. C. of 1819, cb. 183, §13, p. 19 provides, that the lands of any person after his decease shall be charged to his estate, until it shall appear of record in the court of the county, where the land lies, to whom such land ought to be transferred. This act was passed February 9, 1814. See Session Acts of 1813, 1814, ch. 3, §5, p. 17. From the facts certified it does not appear, that when the land was so taxed in the name of William Deakins in 1800 and 1801, and when taxed for many years after-wards in the name of William Dalton, that the records of the court of Harrison county, where the land lay, showed to whom such land should be transferred. It appears also from the evidence, that this tract of land was not entered on the commissioner’s books in 1800 and 1801, in the name of the devisees of William Dea-kins, but only in his name. It also appears, that one fourth of the taxes, for which this land was returned delinquent in the name of William Deakins, was paid on account of its redemption to the treasurer on November 12, 1831. If this' provision in the Code of 1819, §13 of ch. 183, 2 R,. C. p. 15, had been in force in 1800, this entry of the land in the name- of the patentee and its forfeiture in that name would have concluded the devi-sees and those claiming under them under these circumstances.

In the case of Usher’s heirs v. Pride, 15 Gratt. 199, the land was put on the commissioner’s books in the name of the patentee after his death, and forfeited in that name. The circumstances under which it was done were weaker in justification of the validity of such entry than in this case. The court did not deem it necessary to decide -whether the entry was valid ; but President Allen, in delivering the opinion of the court, says: “I think, however, the entry in the names of the patentees concludes the heirs and purchasers claiming under them, and they were forfeited for the delinquency in failing to pay the taxes charged thereon.” And such, I apprehend, would be the case if the patentee, William Deakins, had died after the passage of this act, ch. 183, § 13, Rev. Code of 1809, p. 15, which was in force in 1814, under the circumstances appearing in this case. Does the fact that he died prior to the passage of this act alter the case in this respect? When William Deakins died in 1798, there was no statute law, which I have been able to find, giving any express directions as to how, on the death of a land-owner, his land was to be taxed on the commissioner’s books. But the act passed December 13, 1792, (see Shepherd’s Statutes, p. 54, oh. 22, § 7,) in force in 1800, directed the proper clerks to deliver to the commissioners annually, a list of the conveyances and partitions recorded within the preceding year ; and the commissioners were required to tax the lands accordingly. But as no provision was then made requiring the commissioners of lands to change the manner of charging lands on the death of the owner, I am of the opinion, especially if the records of the county did not show to whom the land after the death of the owner belonged, or that he was dead, that the entry after the death of the owner of the lands in his name concluded then the devisees or heirs, and if returned delinquent the land might be forfeited. I need express no opinion as to whether the entry of the land subsequently in the name of William Dakon and its forfeiture could conclude the heirs of William Deakins, as the entry of this land in 1800 and 1801 would conclude them.

Syllabus 1.

Having considered what was the statute law applicable to this case we will now examine the question, whether the instruction given by the court in this case was erroneous to the prejudice of the plaintiff. Though but one instruction was given by the court, it really included several distinct instructions. The first is, that if this land was entered in 1800 and 1801 in the name of William Deakins, the patentee, and afterwards for a number of years in the name of Wm. Dakon, and then in the name of the plaintiff, John Hoge, and if the jury believe that this land was in each of these years named returned in those names delinquent for the non-payment of the taxes charged thereon, the length of time that has elapsed since the returns of the delinquency is not sufficient to create the presumption of payment of these taxes. It is true, that after a lapse of twenty years the law from such lapse of time alone presumes the payment of a debt due from one person to another; and even in a shorter time, if the circumstances proven tend to show payment, the jury may as a matter of fact properly that; payment has been made. But the rule, that twenty years alone raises a presumption of law, that a debt has been paid, has no application, when the debt is ¿[ue to t^e gtate. The reasons, on which the rule is based, do not apply, when the debt is due to the State. On the contrary no presumption of payment arises from the failure of the State to collect a debt for twenty years, as it does in the case of an individual. The maxim, nullum tempus oeeurrit regi, applies to such a case. So stringent is the application, that when a debt is due the State, a statute of limitations though general in its terms will' not bar the State. It can only be barred by a statute, which expressly states, that the State is to be included in its operation.

The plaintiff in error, to sustain his objection to this part of the instruction, in his petition relies on Johns v. Miller’s lessee, 12 Grat. 456, 457. In that case the parties by consent entered of record, waived their right to have a jury and .submitted the whole matter of law and fact to the court. It was distinctly proven in the case, that the taxes for every year from 1801 to 1839 inclusive had been paid or released; but it did not affirmatively appear that the taxes from 1797 to 1800 had been paid. And the court held under this state of proof, as I understand their decision, that it would be presumed as as a matter of fact and not as a presumption of law, that the taxes from 1797 to 1800 had been paid. Judge Samuels in delivering the opinion of a majority of the court on this point says, pages 456, 457 : “ The State’s taxes from 1797 to 1800 after this lapse of time we must presume to have been paid; or if not paid, they were certainly released by act of assembly. It is distinctly proven that the taxes for every year from 1801 to 1839, inclusive, have been paid or released by law.” The most that is here intimated is, that as a matter of fact after a great lapse of time with the aid of other circumstances taxes may be presumed to have been in fact paid. The instruction in the case before us does not conflict with this. It simply states that mere lapse of time will not •raise a presumption of law that taxes have been paid.

Syllabus 2.

But the plaintiff in his petition for a wi’it of error in this case says: “ Even if the length of time alone were not sufficient to create the presumption of payment, it was still error in the court to give the instruction, because there was other evidence in the cause, which aided the presumption of payment, and the instruction consequently tended to mislead the jury.” I am unable to see how it so tended. If there was other evidence, such as is alluded to, the plaintiff had a right to have the jury instructed to consider this evidence, and if satisfied thereby and from lapse óf time that these taxes were actually paid in fact, that then the land could not be held to have been forfeited to the State. He asked no such instruction ; and I presume he did not do so, because it was clear that these taxes had not been in fact paid. And the instruction given was asked by the defendant simply to prevent his insisting before the jury, that the lapse of time alone raised a conclusive legal presumption, that the taxes had been paid. The fact that as late as November 12, 1831, the plaintiff himself paid, one fourth of these taxes, he then owning one fourth of this tract of land, amounts to an admission, that the other three fourths of these taxes had not in fact been paid.

The second part of the instruction is, that this payment of this one fourth of the taxes aforesaid and damages thereon on one undivided fourth of the land would not prevent a forfeiture thereof. This seems to me to be most obviously law, for the statute authorized the land to be redeemed, only when- all the taxes and damages were paid. The whole tract had been forfeited, and an undivided part of it could not under the statute be redeemed. But the plaintiff in his petition for a writ of error says: “ He is advised, that the tax-receipts are conclusive evidence that all the taxes and damages upon the land in the name of John Hoye and William Deakins had been paid to the date of the receipts.” I confess that I scarcely comprehend this position, for one of the receipts given to the plaintiff, John Hoye, in express language says, that the $155.60 was received “ on account of the redemption of his land returned by the sheriff oí Harrison county for the non-payment of taxes thereon in the name of William Deakins, one fourth of a tract of twenty thousand acres.” This whole tract had been taxed in the name of William Deakins and forfeited ed in his name. John Hoye then in 1831 owned one fourth thereof, and it seems quite obvious, that he paid on account of these taxes due, what he deemed his portion of them, one fourth, and not the whole of these taxes. He could under the law redeem this tract of land or any part of it only by paying the whole of these taxes and damages. . N

Syllabus 3.

The third part of the instruction is, that “ the proper inference from the facts aforesaid, and the certificate of the auditor of public accounts dated the 11th day of July, 1856, and the receipt of George W. Dixon dated the 12th day of November, 1831, is, that the land was in the year 1834 forfeited and vested in the president and directors of the literary fund.” The inference to be drawn from one of these receipts of November 12, 1831, isas we have seen that three fourths of the taxes and damages on this tract of land, which had been returned delinquent, remained unpaid. The other facts referred to are the taxing of this land in the name of William Deakins, the patentee, for two years, the taxing of it in the name of William Dakon for seven years, and the taxing of one fourth of it in the name of John Hoye for three years, and the return of it as delinquent for each of these years. The legal inference, as we have seen, from it having been properly taxed in the name of William Deakins, the patentee, for two years, and its being returned delinquent for those years was, that the tax upon it for those years remained unpaid, and under the statute-laws, which we have referred to above, as we have before stated, the legal inference is, “ that the forfeiture of these lands so returned as delinquent became complete on the 1st of October, 1834.” See opinion of Allen, President, in Usher’s heirs v. Pride, 15 Gratt. 199.

Syllables 4,

If therefore this instruction had ommitted the words, “ and the certificate of the auditor of public accounts dated the 11th day of July, 1856,” this part of the instruction would have been perfectly correct. But it is claimed by the plaintiff in error in his petition for a writ of error that the insertion oi this rendered the instruction erroneous. The plaintiff’s counsel in his petition says, that this certificate of the auditor did not establish the facts set out in it, but under the law it was only prima fade evidence of the facts and time of the return of the real estate as delinquent, see Code of Virginia of 1860, eh. 176, sec 5, p. 722, Code of West Virginia, ch. 130, sec. 5, p. 615; that the court could properly instruct the jury, what legal inferences were to be drawn from certain facts, if proved to their satisfaction, but ought not to instruct the jury as to any inference to be drawn, not from facts, but from evidence only, as this evidence might have been disbelieved by the jury. If the court had instructed the jury to draw this inference from this certificate alone, it would have erred, the objections urged thereto by the counsel for the plaintiff in error being entirely sound. But the court did not instruct the jury to draw this inference from this auditor’s certificate alone, but from it and certain facts, if proved to their satisfaction; and we have seen, that these facts alone required of the jury to draw this inference. If these facts were established by the evidence to the satisfaction of the jury and justified the inference that this land was forfeited, they would in no manner have been aided by the facts stated in the auditor’s certificate, even if the jury had by reason of this instruction regarded the auditor’s certificate as conclusively establising the facts stated in it. This reference therefore by the court to this auditor’s certificate could not possibly have prejudiced the plaintiff. It was erroneous in the court to refer to it as a part of the basis from which he directed the jury to draw the inference, that this land was forfeited, but this error could not have misled the jury to the prejudice of the plaintiff in error, and he can not therefore complain of it in this Court.

The last part of this iustruction is : “ That the payments aforesaid in the year 1831 by the said John Hoye would not afterwards have the effect to divest the title so vested and vest the same or any part thereof, in the said John Hoye.” This is certainly'somewhat confused. The court had instructed the jury, that if they believed certain facts, this land was forfeited in 1834 and vested in the State. He here tells them that certain payments made by John Hoye in 1831 afterwards would not divest this title, which had vested in the State in 1834. We presume the court meant that the payment made by John Hoye in 1838 would not have the effect of divesting the title of the State, which had vested in 1834, and we suppose that the jury so understood this instruction. If so understood, the instruction is correct. It appears from the certified evidence, that this tract of land had been omitted entirely from the commissioners’ books for many years prior to 1838; and that it had not been taxed for those many years. The receipt given by the treasurer, Wm. F. Taylor, to John Hoye on March 14, 1838, was as follows:

“ $100.80. Treasurer’s Office, March 14, 1838.

“Received of John Hoye and the heirs of Francis Deakins and William Deakins, $100.80, on account of the taxes and damages on twenty thousand acres of land in Lewis county, situate on the waters of the right hand fork of Hughes’ river, from the years 1817 to 1837 inclusive, the same having been heretofore omitted, and being now certified by the commissioners of revenue according to law.

“ Wm. F. Taylor.”

It is obvious that this payment was only of the faxes and damages during the twenty years that this land had been omitted from the commissioners’ books, and of course it could not divest the title of the State, which had been acquired on October 1,1834, to this tract of land, not because of its omission from the commissioners’ books, but because for years, when it was on the commissioners’ books, it had been returned delinquent, and these delinquent taxes had never been paid. But if we take this instruction as it is written, and suppose that the jury understood .the payments made by John Hoye in it referred to the payments made by him in 1831, then they must have understood the instruction to mean that these payments made by him in 1831 would not prevent the title vesting in the State on October 1, 1834; and so understood, this latter part of the instruction .is, we have seen, correct. I do not think, therefore, that theapparent confusion in the conclusion of this instruction could in any way, however interpreted by the jury, have misled them to the prejudice of the plaintiff, and he cannot, therefore, complain thereof in this Court.

I am, therefore, of the opinion that there is no error in the record, of which the plaintiff in error can complain in this Court: and that the judgment of the circuit court of Ritchie county, of March 22, Í 859, must be affirmed, and that the defendants in error must recover of the plaintiff in error, George Smith, trustee of John Hoye, deceased, their costs expended in this Court and $30.00 damages.

The Other Judges Concurred.

Judgment Affirmed.